Cho Jae-2018-China-2264 ( August 21, 2018)

The exclusion period of imposition shall be 10 years for receipt of false tax invoices under the agreement with the other party

Since it appears that the processing tax invoice was issued under the agreement with the opposite contractual party, while it appears that the above act had the intent or awareness that the national tax revenue would have been reduced, it is reasonable to view that the exclusion period for imposition is 10 years.

Tax amount paid under Article 17 of the Value-Added Tax Act

2018Guhap14092 Revocation of the imposition of corporate tax and value-added tax

○○ Co., Ltd.

○ Head of tax office

August 13, 2019

September 3, 2019

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s taxation of KRW 45,155,560, corporate tax of KRW 109,329,750, and KRW 173,388,640, which was imposed against the Plaintiff on January 2, 2017 by the Plaintiff, was revoked on February 12, 2018.

1. Details of the disposition;

A. On February 2002, the Plaintiff was engaged in the manufacturing and wholesale business of electronic equipment by opening the business and closing the business on September 25, 2008.

B. The Plaintiff deducted the input tax amount in accordance with the tax invoice of KRW 197,272,00,00 (hereinafter “first tax invoice”) received from knife corporation, knife corporation, etc. (hereinafter “the knife knife knife”) from the output tax amount, and reported the value-added tax for the second period of 2006, and reported the corporate tax for the business year 2006, including the above amount in the deductible expenses, and reported the corporate tax for the business year 2006, and filed the tax invoice of KRW 905,171,182 (hereinafter “second tax invoice” and “the tax invoice combined with the first tax invoice”) in accordance with the supply value received from the knife knife corporation, etc. (hereinafter “the knife knife knife”) by deducting the input tax amount from the sales tax

C. As a result of conducting a tax investigation with the Plaintiff from November 12, 2014 to February 14, 2015, the Defendant deemed that the secondary tax invoice constituted a processed tax invoice received without a real transaction, and notified the Plaintiff of KRW 198,290,290, and corporate tax of KRW 153,292,830 for the business year 2007, respectively.

D. As a result of conducting a tax investigation with respect to the Plaintiff from November 28, 2016 to December 31, 2016, the Defendant deemed that the first tax invoice also constitutes a processed tax invoice received without a real transaction and notified the Plaintiff of KRW 45,15,560 of the value-added tax for the second period of 2006, and KRW 109,329,750 of the corporate tax for the business year 2006 (hereinafter referred to as “disposition”).

E. On January 25, 2018, the Plaintiff filed a request for a trial with the Tax Tribunal. On the grounds that the Tax Tribunal’s revocation of the imposition of the first-term value-added tax in 2007 and the business year 2007 against the Plaintiff cannot be deemed to have been legally served on the Plaintiff. On January 2, 2017, the Plaintiff re-listed the actual transaction related to the first tax invoice and rendered a decision to rectify the tax base and tax amount as a result.

F. Accordingly, the Defendant revoked ex officio the imposition disposition of corporate tax for the first period of the year 2007 and the business year 2007. On February 12, 2018, the Defendant re-issued and notified the Plaintiff of KRW 173,38,640 of the corporate tax for the business year 2007 (the first period of the value-added tax for the year 2007 was deemed to have expired, and did not be inventories; hereinafter referred to as the “each disposition of this case in combination with the disposition of January 2, 2017”), and from February 12, 2018 to March 23, 2018, the Defendant notified the Plaintiff of the initial disposition as to the imposition disposition of corporate tax for the business year 2007 as to the disposition of January 2, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiff's assertion

1) The Plaintiff concluded a contract for goods supply with the Maternia and △△△△, and supplied the goods to the consumers after being supplied with the goods from the above companies, and paid the price to the bank account of each of the above companies. As such, each of the instant tax invoices is not a false tax invoice.

2) Even if the above transactions constitute a disguised transaction, the Plaintiff’s intent to evade tax.

Therefore, it cannot be readily concluded that the tax authority made it impossible to discover the taxation requirement or caused mistake, etc. by committing deceptive schemes or other unlawful acts. Therefore, the exclusion period for taxation under Article 26-2 (1) 3 of the Framework Act on National Taxes should be applied 5 years. Nevertheless, the Defendant applied 10 years to the Plaintiff each disposition of this case, and thus, each disposition of this case was unlawful.

3) false purchase if the transaction related to each of the instant tax invoices is a disguised transaction.

Since sales on part should also be reduced together, at least corporate tax of each of the dispositions in this case should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion of real transaction

가) 먼저 제1세금계산서와 관련하여 보건대, 갑 제5호증의 2의 기재에 의하면 원고가 2017. 1. 5. ◎◎피아에게 217,000,000원을 송금한 사실은 인정된다. 그러나을 제4, 5, 7호증의 각 기재에 변론 전체의 취지를 더하여 인정되는 다음과 같은 사정들, 즉 ① 원고가 2006년 2기 ◇◇은행 등에게 판매한 내비게이션은 2006년 11월에 출시된 Fine M-730DB 제품인바, ◎◎피아는 제조사로부터 위 제품을 매입한 내역이 없고, 원고뿐만 아니라 여러 업체로부터 대금을 송금 받는 즉시 당일 출금하는 등 전형적인 자료상으로 보이는 점, ② 원고가 세무조사 당시 제출한 ◎◎피아와의 물품공급계약서에는 원고가 ◎◎피아에게 내비게이션을 공급하는 것으로 기재되어 있어 위 계약서를 근거로 제1세금계산서가 발행되었다고 볼 수는 없는 점, ③ 원고가 세무조사 당시 제출한 월자금 수입 및 지출계획에는 원고가 2017. 1. 5. 'M-720DB' 1,000대에 대하여 1대당 가격 217,000원으로 하여 합계 217,000,000원을 ◎◎피아에게 그 대금으로 지급한 것으로 표시되어 있는데, 원고가 판매한 내비게이션은 대당 가격이 549,000원인 'M-730DB'인 것으로 확인된 점(원고는 피고의 재조사 당시 ◎◎피아로부터 구입한 물건은 'M-720DB' 제품과 'M-730DB' 제품이 섞여 있었던 것 같다고 진술하였으나, 두 제품의 가격 차이를 고려하면 이 부분 진술은 믿기 어렵다), ④ 원고는 조세심판원에 심판청구를 할 당시 2006. 11.부터 2007. 5.까지 13,659대의 내비게이션을 판매하였고, △△전자로부터 8,323대, ◎◎피아로부터 1,000대, ☆☆이엔씨로부터 4,425대 등 총 13,748대를 매입하였다는 자료를 제출하였으나, 피고의 재조사 당시 원고는 위 자료상 매출대수는 고객리스트로 확인한 것이고 매입대수는 세금계산서를 기준으로 매입단가를 고려하여 추산한 것이라고 진술하였는데, 원고가 2006년 2기 및 2007년 1기에 내비게이션 제조업체인 주식회사 AA웍스 및 주식회사 BB디지털로부터 직접3,942,000,000원 상당의 내비게이션을 매입한 사실이 확인되는바, 위 매입 및 매출 자료는 그대로 믿기 어렵고 원고가 제조업체로부터 내비게이션을 직접 매입하면서도 ◎◎피아로부터 일회적으로 내비게이션을 추가로 매입할 필요도 없었을 것으로 보이는 점 등을 종합하여 보면, 제1세금계산서는 실물거래 없이 수수된 가공의 세금계산서로 봄이 타당하다.

B) Next, according to the Plaintiff’s 2 tax invoice: (a) it is difficult for ○○○○○○○ to use the 6-day tax invoice as a witness; (b) it was written on October 16, 2006 between the Plaintiff and △△△△ to supply the Plaintiff with the 1-day tax invoice; and (c) it is recognized that the Plaintiff transferred the 95,68,300 won to △△△△△△ to the Plaintiff without any specific reason, on the premise that the 2-day tax invoice and the 6-day tax invoice were to be purchased; and (c) it was difficult for ○○○○○○○○ to use the 1-year tax invoice and the 2-year tax invoice to use the 1-year tax invoice and the 2-year tax invoice to use the 1-year tax invoice and to use the 1-year tax invoice to use the 20-day tax invoice and to use the 2-year tax invoice to use the 1-year tax invoice.

2) Determination on the assertion on the application of five years of exclusion period

In full view of the above facts and the purport of the argument in the above evidence, the plaintiff appears to have received each of the tax invoices of this case, which are the processed tax invoices under the agreement with the other party, Maternia and △△△△, which are the other party to the transaction, and the intent or awareness that the national tax revenue would have been reduced due to the above act. In light of the fact that the plaintiff received a processed tax invoice from Maternia and △△△, which was issued in 2006 and the first quarter of 2007, from the output tax amount for the second quarter of 2006 and the first quarter of 207, and included the corresponding amount in the deductible expenses when filing a corporate tax return in the calculation of deductible expenses, the plaintiff's act constitutes a case where the national tax was evaded, refunded, or deducted by "Fraud or other unlawful act" as stipulated in Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007).

3) Determination as to the assertion of reduction in sales portion

In light of the facts acknowledged earlier, the Plaintiff appears to have received each of the instant tax invoices at the time of and after the receipt of each of the instant tax invoices. Since each of the instant tax invoices is a false tax invoice, it cannot be deemed that the false purchase was immediately connected to the false sale, the Plaintiff’s assertion on this part cannot be accepted.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.

(c)