The tax invoice received by the Plaintiff does not constitute a false tax invoice.

The Plaintiff’s tax invoice received is not a false tax invoice, but a tax invoice is a false tax invoice, and even if it is a false tax invoice, the Plaintiff constitutes a bona fide transaction party, and thus, the imposition

Article 17 (Payable Tax Amount)

2016Guhap1170 ( October 30, 2018)

Maximum ○○

○ Head of tax office

on October 1, 2018 09

on January 30, 2011

1. The Defendant’s imposition of KRW 45,869,875, and global income tax of KRW 4,476,420, imposed on the Plaintiff on March 14, 2016, shall be revoked in entirety.

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

Cheong-gu Office

The order is as follows (the plaintiff specified the date of disposition in the complaint on March 11, 2016, but the date of disposition in light of the following details of disposition.)

- 2-

1. Details of the disposition;

A. The Plaintiff is a person who is engaged in the wholesale business related to non-metallic metals with the trade name of 1430 ○○○-ro ○○○○○-ro 1430 - from 18 to ○ Steel.

B. From August 201 to November 2011, 201, the Plaintiff purchased sn beam steel, etc. from ○○ enterprise (representative: Kim○) located in ○○-ri 1114-2, ○○-do, ○○-do, ○○-do, ○○-do, ○○-do, from 01 to 11.

The tax invoice of this case (hereinafter referred to as "the tax invoice of this case") was received in detail as follows.

Suppliers

Issuance Date

Details of supply

Value of supply (cost)

Amount of tax (source)

Kim dilution

August 30, 2011

H sn beam beams

96,106,440

9,610,644

Kim dilution

October 21, 2011

Steel and steel products and steel scrap metal

60,000,000

6,000,000

Kim dilution

October 21, 2011

Steel and steel products and steel scrap metal

23,450,000

2,345,000

Kim dilution

November 8, 2011

Steel and steel products and steel scrap metal

20,000,000

2,000,000

Kim dilution

November 25, 2011

Steel and steel products and steel scrap metal

24,264,690

2,426,469

(c) After conducting a tax investigation on ○ enterprise from July 2, 2015 to November 15, 2015, the head of the ○○ Tax Office: (a) processed tax without any real transaction during the period from July 2, 2015 to December 2, 2014;

The fact that the invoice was issued was discovered.

D. The Defendant notified the head of ○○ Tax Office of the result of the investigation that ○○ Company was data, and deducted the relevant input tax amount by deeming the instant tax invoice as another tax invoice by deeming the supplier as a different tax invoice. On March 14, 2016, the Plaintiff on March 14, 2016 as value-added tax 45,869,875 won, and the comprehensive lawsuit reverting to the year 2011

4,476,420 won was corrected and notified (hereinafter referred to as the "disposition of this case").

E. On June 3, 2016, the Plaintiff’s objection and sought the revocation of the instant disposition to the Tax Tribunal.

Although an appeal was filed, it was dismissed on October 20, 2016.

F. The father Kim○-○’s father-○ issued a false tax invoice even though he did not actually supply scrap metal from July 27, 2009 to January 22, 2015 as the actual operator of the ○○○ enterprise.

As the facts charged, ○○○ District Court was prosecuted as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Delivery of False Tax Invoice, etc.) by 2016Gohap466, and the said court was guilty on December 16, 2016.

After the recognition of the sentence of imprisonment with prison labor for two years to Kim ○○, the sentence of imprisonment with prison labor for three years and a fine of 520 million won was imposed, and the above judgment was conducted by the appellate court (Seoul High Court 2017No15) and the final appeal (Supreme Court 2017Do946).

on August 16, 2017.

[Reasons for Recognition] Gap evidence Nos. 1 and 4-1 through 3, Eul evidence Nos. 1, 2, 3, 5, and 16, and the court's commission for delivery of documents to ○ High Court, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. The assertion and judgment

A. The issues of the instant case

In full view of the Plaintiff and the Defendant’s assertion, the key issue of the instant case is ① whether the instant tax invoice was issued without actual scrap metal transaction with the ○○ enterprise and constitutes a false tax invoice; ② whether the instant tax invoice was issued as a supplier by Kim○, not the actual operator of the ○ enterprise, and constitutes a false tax invoice; ③ whether the Plaintiff was negligent in not knowing or not having been aware of the fact in the event that the instant tax invoice is deemed to be a false tax invoice.

B. Whether the instant tax invoice is a tax invoice issued without real transaction

1) In principle, the burden of proving that a tax invoice received in the course of a specific transaction constitutes a “tax invoice different from the fact” under Article 17(2)2 of the former Value-Added Tax Act (wholly amended by Act No. 11873, Jun. 7, 2013; hereinafter “ Value-Added Tax Act”) where the deduction of an input tax amount is denied on the ground that the specific transaction is a nominal transaction for which no substantial delivery or transfer of goods is made (see Supreme Court Decision 2008Du9737, Dec. 11, 2008).

2) In light of the following circumstances, it is insufficient to recognize that the instant tax invoice was issued without a real transaction and constitutes a tax invoice different from the fact, solely based on the evidence submitted by the Defendant, in light of the following circumstances acknowledged by the respective descriptions of the evidence Nos. 4-1 through 3, Nos. 4, 16, 20 through 24, and the purport of the entire pleadings.

A) According to the fact that the Plaintiff was supplied with scrap metal from ○○ enterprise, the fact of transaction, the certificate of acceptance, and the statement of transaction to the shipping company, etc., are prepared. According to the evidence No. 4, it is difficult to deem that the instant tax invoice was issued without a real transaction, in light of the fact that the Defendant alleged that the real transaction itself was different in the tax appeal written on June 13, 2016 (2/7 pages).

B) According to the statements in the evidence Nos. 7 through 15, since the fact that Kim○ received the scrap metal from the Plaintiff and transferred the full amount to the account of Lee○○○○, even though it is recognized, how to dispose of the scrap metal received by Kim○○, is determined by Kim○, it is difficult to readily conclude that the instant tax invoice did not have a real transaction.

C) According to the evidence Nos. 22 through 24, the tax invoice issued by the Plaintiff in the indictment for Kim○-○ is also written as a false tax invoice, but the prosecutor deleted the facts charged against the Plaintiff during the trial.

C. Whether the instant tax invoice constitutes a tax invoice different from the actual one of the suppliers

1) The meaning that any entry in the tax invoice under Article 17(2)2 of the Value-Added Tax Act is different from the fact is that the necessary entry in the tax invoice does not coincide with the actual supplier of goods or services or with the supplier, value, and timing of the goods or services, notwithstanding the formal entry in the transaction contract, etc. made between the parties to the goods or services (see, e.g., Supreme Court Decision 96Nu617, Dec. 10, 196). Therefore, even if there is no transaction for supplying goods, etc., as well as the actual existence of such transaction, the supplier constitutes a different tax invoice from the fact that the supplier is different from the issuer.

2) According to each of the statements in the evidence Nos. 3 and 17 and all of the arguments, Kim ○ and Kim ○○ stated that all of the ○○○○ and Kim ○○ stated that the ○○○ actually operated the ○○○ enterprise. As seen earlier, Kim ○ issued a tax invoice without actual transaction in the position of operating the ○○○ enterprise. As seen earlier, the judgment of conviction was rendered. However, in the case of this case where there is no proof that the Plaintiff, in the transaction with the Plaintiff, was aware of the fact that the ○○ enterprise’s representative, not Kim ○○, was allowed to engage in a transaction with the ○○○○○ as a party to the transaction. Accordingly, the instant tax invoice cannot be viewed as a case where the actual supplier and the issuer of the tax invoice are different.

D. Family determination: Determination as to whether the Plaintiff was bona fide or without fault

1) The Plaintiff asserts that even if the instant tax invoice is different from the facts, it was unaware of such fact, and that there was no negligence on the part of the Plaintiff.

2) A person who receives goods or services may deduct an input tax amount only when he/she was unaware of the fact that the person who was entered in the tax invoice for the purchase of goods or services was not a person who actually supplied the goods or services, even though he/she was unaware of the fact that the person was not a person who actually supplied the goods or services, but does not have a duty to actively investigate whether the other party is a person who was supplied the goods or services. As such, there are sufficient circumstances to suspect a person who was a disguised business in light of the facts revealed in the process of collecting data in order to determine whether the other party is a person eligible to a transaction. However, the other party was negligent on the part of the other party who was unaware of the fact that he/she was a disguised business (see, e

3) In light of the following circumstances that can be acknowledged by the evidence mentioned above and the overall purport of evidence set forth in Gap's evidence and evidence set forth in Gap's evidence Nos. 2 and 3 (including each number), the plaintiff cannot be deemed to have been negligent in not knowing that the name of the supplier of the tax invoice of this case is different from that of the actual supplier, and in not knowing

A) At the time of commencing a transaction with Kim○-○, the Plaintiff made efforts to verify whether the ○○ enterprise is normally running the business, such as receiving a copy of the business registration certificate and the passbook in the name of Kim○-○, which is named as the representative of Kim○-○ at the time of opening the transaction with Kim○-○.

B) It is recognized that the Plaintiff did not submit evidence to the effect that the Plaintiff visited the place of business of the ○○ Company, and that the place of business of the ○○ Company does not have a stand in place. However, the transaction between the Plaintiff and the ○○ Company does not sell the scrap metal loaded in the place of business, but promptly transport and sell it to the Plaintiff. As such, it does not need to examine whether the Plaintiff visited the place of business of the ○○ Company and actually owns the scrap metal with a stand in the place of business.

C) When the Plaintiff receives scrap metal from ○○ enterprise and receives scrap metal, the Plaintiff prepared a receipt certificate and a measurement certificate stating the date, vehicle number, total weight, etc. each time it takes over the scrap metal, and received a tax invoice and a written confirmation of the fact of transaction from ○ enterprise and paid the price.

D) Even though the Plaintiff could have known that the instant tax invoice was false, it seems that there was no motive for the Plaintiff to engage in a transaction even when the said input tax deduction was denied, thereby undermining the risk of double burden of value-added tax.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.