Seoul Administrative Court 201Guhap3845 ( December 01, 2011)

Seocho 2010west 1856 (01.02.01)

If a tax invoice is received from a person other than the actual supplier, it shall be subject to the penalty tax for failure to receive evidence.

As long as the key purchaser cannot be seen as the actual supplier of oil, the company received a tax invoice from the actual supplier, not from the supplier of oil, but from the actual supplier, and thus, the company is subject to the additional tax on not receiving evidence.

Article 76 of the Corporate Tax Act, Article 116 of the Corporate Tax Act

2012Nu852 Revocation of Disposition of Imposing Corporate Tax and Value-Added Tax

XX Co., Ltd

The AA

Head of the tax office;

Appellant-Appellant

Head of Chungcheong Tax Office

Seoul Administrative Court Decision 2011Guhap3845 decided December 1, 2011

October 26, 2012

December 14, 2012

1. All appeals filed by Plaintiff XX and the head of the Chungcheong District Tax Office are dismissed.

2. Of the appeal costs, the part arising between the Plaintiff Company XX and the Defendants shall be borne by the said Plaintiff, and the part arising between Plaintiff Jeong and the Defendant Chungcheong Tax Office shall be borne by the said Defendant.

1. Purport of claim

The imposition of each of the tax office's corporate tax of 200, 2007, 2000, 2008, 2000, 2000, 2000, 2000, 200, 200, 2008, 200, 200, 200, 200, 200, 2007, 200, 2000, 100, 2000, 200, 2008, 200, 200, 200, 200, 200, 200, 200, 20, 200, 200, 20, 200, 20, 200, 20, 20, 300, 30,

2. Purport of appeal

A. The plaintiff corporation XX

Of the judgment of the first instance court, the part against the Plaintiff Co., Ltd. is revoked. The Defendants’ and each disposition of imposition against the Plaintiff Co., Ltd. (hereinafter referred to as “Plaintiff Co., Ltd.”) are revoked.

(b) Defendant Chungcheong District Director;

The part of the judgment of the court of first instance with respect to Jeong shall be revoked. The plaintiff's claims shall be dismissed.

1. Quotation of judgment of the first instance;

The reasons for this decision are as follows: (a) by adding the following provisions to each corresponding part of the judgment of the first instance; (b) by adding the parts from 11th to 12th 19th 19th tier of the judgment of the first instance, the same shall apply to the judgment of the first instance except for the higher portion as provided in the following paragraph (3). In accordance with Article 8(2) of the Administrative Litigation

2. The addition;

A. The following part of the judgment of the court of first instance 9: 5 pages "no evidence exists"

The Plaintiff Company asserts that the actual supplier of the instant oil should be deemed the key purchasing place on the grounds of the fact that the Plaintiff Company entered into an oil transaction contract with the key purchasing place, the remittance of the price to the account in the name of the key purchasing place, the fact that there was a return of remittance from the order cancelled by the key purchasing place, the fact that there was credit transaction, the fact that there was a delivery of oil in the oil at the oil reservoir designated by the key purchasing place, and the fact that the prosecution rendered a decision of non-guilty suspicion against the Plaintiffs on the charge of violating the Tax Punishment Act. However, the above circumstances cited by the Plaintiff Company are not compatible with the murder that the actual supplier of the instant oil is not the key purchasing place, and in light of the aforementioned various circumstances, it seems insufficient to recognize the Plaintiff Company’s allegation. Meanwhile, the testimony by the witnessB of the court at the time of the prosecutor’s examination is difficult to accept it as it is in light of its statement made by the Defendant).

B. The following parts of the judgment of the court of first instance 14 pages 2 of the judgment:

In light of the following facts, the head of the competent tax office asserts that the actual owner of the shares owned by the largestCC may be recognized as the Plaintiff Company, considering the following day of July 22, 2004, on which the Plaintiff Company: (a) made a loan to the largestCC without any evidentiary document to repay the difference or interest rate; (b) the source of the fund that the largestCC paid to the Plaintiff Company is doubtful; (c) the LCC stated that it was unable to pay the loan from the Plaintiff Company when the initial investigation was conducted; and (d) the largestCC wired the Plaintiff Company a 00 won with the seal affixed on July 22, 2004, when the largestCC remitted the Plaintiff Company to the largestCC, the actual owner of the shares owned by the largestCC may be recognized as the Plaintiff Company. However, considering the aforementioned various circumstances, considering the aforementioned various circumstances, it is insufficient to stabilize the alleged facts solely on the above basis cited by the head of the competent tax office).

3. Parts:

Article 76 (5) of the former Corporate Tax Act provides that "where a corporation (excluding a corporation prescribed by Presidential Decree) is supplied goods or services with an entrepreneur prescribed by Presidential Decree in connection with its business and fails to receive evidential documents provided for in any subparagraph of Article 116 (2), the head of the competent district tax office having jurisdiction over the place of tax payment shall collect as corporate tax the amount calculated by adding an amount equivalent to 2/100 of the unpaid amount to 2/100 of the corporate tax except for the cases subject to the proviso of Article 116 (2)." The main sentence of Article 116 (2) provides that "where the corporation is supplied goods or services and pays the prices thereof to any business operator prescribed by Presidential Decree, it shall receive and keep evidential documents falling under any of the following subparagraphs" and Article 16 (1) of the former Value-Added Tax Act provides that "tax invoice under Article 16 (2) of the former Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008)" provides that "where an entrepreneur registered as a taxpayer supplies goods or services, its name and name as prescribed by Presidential Decree.

In light of the language, legislative intent, etc. of the aforementioned provisions, a corporation that is supplied with goods or services in connection with a business should receive documentary evidence provided for in each subparagraph of Article 116(2) of the former Corporate Tax Act from a “person who actually conducted a transaction of supplying goods or services.” Thus, where the person who actually conducted a transaction of supplying goods or services fails to receive documentary evidence as above from a “person who actually conducted a transaction of supplying goods or services, an additional tax is imposed pursuant to the said provision, and even if the corporation received documentary evidence from a person who was not a “person who actually conducted a transaction of supplying goods or services,” it shall not be deemed otherwise (see Supreme Court Decision 2010Du24654, Apr. 26, 2012).

Therefore, as seen earlier, insofar as the key purchaser cannot be deemed an enterpriser who actually supplied the instant oil to the Plaintiff Company, the Plaintiff Company received the instant tax invoice from the key purchaser, not actually receiving the tax invoice from the supplier of the instant oil, but not from the actual supplier, and thus, constitutes the subject of penalty tax under the said provision. This part of the note by the Plaintiff Company cannot be accepted.

2) The Plaintiff Company asserts that, even if the penalty tax is imposed on the amount of unpaid tax pursuant to the above provision, the amount of KRW 100 million should be applied to the amount of penalty tax under Article 49(1) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same). Thus, the part in excess is unlawful.

However, the proviso of Article 49(1) of the former Framework Act on National Taxes provides that "However, this provision does not apply to cases where a person intentionally violates the pertinent task." This provision provides that "If the Plaintiff Company has acted in good faith and without fault with respect to a false tax invoice, it has continuously changed the name of the Plaintiff Company over several times for a relatively short period of time. Unlike the purchasing places, the Plaintiff Company is in good condition with respect to the price purchasing places, but it seems that the Plaintiff Company continued to have a doubt about the safety of the transaction (i.e., evidence No. 48-1 to No. 24) although the price conditions for the issue purchasing places are good, it seems that the issue purchasing place is merely the so-called material, and that the Plaintiff Company has been aware of at least that it is not the actual supplier of the oil of this case. Accordingly, the Plaintiff Company's receipt of the tax invoice in the name of the actual supplier constitutes an "in intentional violation of the obligation under the above proviso."

4. Conclusion

Thus, the claim of this case by the plaintiff Jung-A is justified, and all claims against the defendants of the plaintiff company must be dismissed. The judgment of the court of first instance is just in conclusion. Thus, the appeal by the plaintiff company and the director of the tax office of Chungcheongju is dismissed as it is without merit.